12 



have put to beneficial use. Under these circumstances there is 

 always a tendency for the holders of decreed rights to more water 

 than they have ever used to enlarge their demand on the stream by 

 enlarging or extending their ditches or by selling the surplus to some 

 one else. In such a case the usual thing is for the canal owner to 

 attempt to take the increased quantity of water claimed, when the 

 commissioner must decide whether or not he will allow it. The com- 

 missioners have usually been inclined to enforce the theory of bene- 

 ficial use and refuse to allow the increased use, even if the volume 

 decreed was in excess of the volume used. Appeals are then made to 

 the courts, which have a tendency to uphold the decrees, regardless of 

 beneficial use. But in any case when such a demand comes the com- 

 missioner must first decide what he will do. Since 1899, before a 

 transfer can be made the party wishing to transfer any right to another 

 ditch must apply to the court for permission to do so, but parties still 

 try to secure transfers through the commissioner. The law regarding 

 transfers, just referred to, relates to permanent transfers only, but 

 ditch owners may still "loan" or exchange water for short periods to 

 save crops. There is a tendency in some sections to "loan" water 

 which is not needed by the loaner, and to which he therefore has no 

 right; and here, again, the commissioner must decide whether the 

 proposed loan comes within the terms of the law. 



Further complicating the matter of determining how the water 

 supply shall be divided, the commissioner is required to see that no 

 one taking water is allowing it "to go to waste or to be wastefully or 

 extravagantly or wrongfully used * * * or put to any other use 

 than that to which it is entitled to be used in the order of priority," 

 and to shut off the supply to the extent that the water is being 

 wasted or wrongfully used. 



Any one dissatisfied with any action of the commissioner may 

 appeal to the division engineer, and from him to the State engineer, 

 l)ut the usual practice has been to disregard the orders of the commis- 

 sioner and then apply to the court for an injunction to restrain him 

 from enforcing them. 



The physical difficulties are equally great. Not all the streams 

 have been measured enough times to make it possible to make rating 

 tables which would enable the commissioner to find out each day how 

 much water there is to divide. But the streams which have been 

 measured vary constantly in discharge, making necessary frequent 

 changing of the head gates of the ditches. Very few canals had accu- 

 rate measuring devices, and the commissioner was authorized to put 

 them in if the owners refused to do so and collect the cost from the 

 owners. There was no penalty for not putting them in, and the com- 

 missioner was forced to bring suit to collect in case the owner of the 



